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[2013] ZAWCHC 62
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Du Plooy v The Cascades Body Corporate and Another (275/10) [2013] ZAWCHC 62 (12 March 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPEHIGH COURT, CAPE TOWN]
Case
No:
275/10
In
the matter between:
LOUIS
ARNOLD DU PLOOY
.................................................................
Plaintiff
and
THE CASCADES BODY
CORPORATE
....................................
First
Defendant
BROWMANN PROPERTY
MANAGEMENT CC
...............
Second
Defendant
JUDGMENT
DELIVERED: 12 MARCH 2013
FOURIE,
J:
[1] Plaintiff claims
damages from first and second defendants, jointly and severally,
arising out of an incident during the late
afternoon of 29 July 2009,
when he allegedly slipped and fell on slime and moss that had
accumulated on the floor of the washing
line area at the Cascades
Sectional Title Development Scheme (“the development”) in
Table View, Western Cape.
[2] Alleging that
the fall was caused by the negligent breach of a legal duty, owed to
him by the first and/or second defendants,
to take steps to prevent
him from slipping and falling in this area, he seeks the recovery of
damages suffered by him pursuant
to the injury sustained as a
consequence of the fall. The claim is opposed by both the defendants.
[3] At the request
of the parties I ordered, in terms of Rule 33 (4), that the issue of
liability be determined first and that the
issue relating to the
quantum of plaintiff’s damages stand over for later
determination, if necessary.
[4] Plaintiff is the
owner of one of the eight units in the development, while first
defendant is the body corporate established
for the development in
terms of section 36 of the Sectional Titles Act 95 of 1986 (“the
Act”). Second defendant was
at all relevant times the
management agent of the development, contractually appointed as such
by the first defendant. Second defendant
was at all material times
represented by Mrs Lucinda Brown (“Brown”).
[5] The incident
took place in an enclosed outdoor area,depicted in the photographs
which form part of exhibit B. The area forms
part of the common
property of the development. Photograph 11 shows the walled-in
rectangular area with the washing lines where
the incident took place
virtually in the centre of the area. Photograph 25 is taken from the
opposite side, where a gate provides
entrance to the area, and shows
the washing lines where the incident took place closest to the
photographer. As can be seen, the
washing lines rotate around a
centre pole affixed to the concrete floorand the unit is known as a
“whirly bird”.
[6] I now proceed to
deal with plaintiff’s claim against the first defendant.
[7] It is clear from
the provisions of the Act (see in general sections 36 and 37), that
first defendant, as the body corporate,
is legally responsible for
the control, administration and management of the common property at
the development. The Act expressly
provides that a body corporate
shall manage, control and administer the common property for the
benefit of all owners. In view
thereof, one cannot quarrel with
plaintiff’s submission that first defendant is in virtually the
same position as a landlord,
hotel owner or shopkeeper, who, by
virtue of his or her control over property, has a legal duty to take
reasonable steps in respect
of maintenance and supervision to ensure
that the property is in a safe condition with reference to the type
of person who may
normally and reasonably make use of it. See
Beaven
v Lansdown Hotel (Pty) Ltd
1961 (4) (DCLD) SA 8;
Buys and
Another v Lennox Residential Hotel
1978 (3) SA 1037
(C) and
Chartaprops 16 (Pty) Ltd v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA).
[8] The crucial
issue between plaintiff and first defendant turns on the requirement
of
culpa
in the law of delict and, in particular, whether or
not first defendant had negligently failed to discharge the legal
duty which
it owed plaintiff, as a person who would normally and
reasonably make use of the washing line area.
[9] According to the
evidence, the common property of this development covers a reasonably
small area, not more than half the size
of a rugby field. This
includes the washing line area. In order to discharge its statutory
duty to properly maintain the common
property and keep it in a state
of good and serviceable repair, the first defendant initially
employed a cleaning/gardening service
contractor known as HAP Flat
Maintenance. However, at the annual general meeting of the members of
first defendant ,held on 9 September
2008, plaintiff expressed his
dissatisfaction with the service provided by this contractor. The
meeting then resolved that, with
effect from 1 October 2008,
plaintiff would take over, at the same rate of remuneration as HAP
Flat Maintenance, the cleaning/garden
service at the development. I
should mention that at this same AGM, the plaintiff and one Mrs C
Freeman (“Freeman”)
were appointed as the two trustees of
first defendant for the year ending September 2009.
[10] Plaintiff took
over the cleaning/gardening services in accordance with a work
schedule which he had prepared. In terms thereof,
the whole outside
area of the development had to be swept twice a week (Mondays and
Thursdays) and other cleaning and gardening
tasks had to be performed
on Mondays, Wednesdays and Thursdays. According to the evidence, the
plaintiff’stasks were in the
main performed by his mother and,
in due course, since May 2009,by his fiancée (later his wife).
Plaintiff assisted them
in this regard. According to plaintiff and
his wife,the sweeping duties included the cleaning and sweeping of
the floor in the
washing line area twice a week.
[11] There has been
much debate regarding the legal significance of plaintiff’s
appointment to perform the cleaning/gardening
services at the
development. It was argued on behalf of plaintiff that, by appointing
plaintiff to perform these services, first
defendant did not delegate
to plaintiff its duty to ensure that the common property is safe. To
me this appears to be correct,
with the result that the legal duty to
ensure that the common property was safe,remainedwith first
defendant. However, being a
legal persona, first defendant could not
itself discharge this duty and had to take steps to have same
discharged. The obvious
way in which this is done, is by the
appointment of agents or employees as envisaged in section 38 (a) of
the Act. To this end
plaintiff was appointed in October 2008, to
attend to the upkeep of the common property of the development. The
question, therefore,
is whether plaintiff’s appointment as a
cleaner/gardener constituted the taking of reasonable steps by first
defendant to
ensure that the common property of the development, and,
in particular, the washing line area, was safe for those who would
normally
and reasonably make use of it.
[12] The following
appears to be common cause regarding the condition of the floor of
the washing line area:
A downpipe runs
down the common wall shared by the washing line area and the
adjacent unit of plaintiff. Prior to 29 July 2009,
the downpipe was
not fitted with a rain sump, resulting in its contents being
discharged onto the floor surface of the washing
line area.
The downpipe is
connected to six or seven geysers which, when heated, will each
discharge up to three litres of water per day
into the downpipe. If
any of the valves of the geysers were to be faulty, additional water
will be discharged into the downpipe.
Also, any rainwater and other
substances, e.g. leaves in the gutters, will be discharged into the
downpipe.
A sewerage pipe is
fitted to the wall next to the downpipe and at the time of the
incident it had a crack which resulted in minimal
dampness seeping
through to the concrete floor of the washing line area.
As a consequence of
this discharge onto the concrete floor of the washing line area,
this surface was constantly wet and covered
by slime and moss,
rendering it slippery and dangerous.
The extent of the
area covered by the wet slime and moss, varied, depending on the
aforesaid factors, but at the time of the incident
it extended
approximately 1 metre from the wall in the area where the downpipe
discharges its content onto the floor of the washing
line area. (See
photographs 1 to 6, which were taken on the day of the incident). On
that occasion the slippery area extended
underneath the one washing
line of the whirly bird and caused a hazard for any person hanging
up or removing washing at that
particular side of the whirly bird.
[13] I should
mention that, approximately nine months after the incident, this
downpipe was re-routed to discharge its contents
outside the washing
line area into the garden. A channel was also fitted next to the wall
ensuring that any leak from the downpipe
or sewerage pipe would be
disposed of through the channel and not run onto the surface of the
washing line area. In addition, a
warning sign was affixed to the
wall, warning users that the floor is slippery when wet. These
remedial measures (see photographs
22/23)were implemented without
incurring substantial costs.
[14] The defence
raised by first defendant against plaintiff’s claim, is a
denial of any negligent conduct on its part, alleging
that it took
the necessary reasonable steps to keep the common property of the
development safe by appointing plaintiff as first
defendant’s
cleaner/gardener. It is therefore necessary to determine the legal
effectiveness of the appointment of plaintiff
in this capacity.Put
differently, did the appointment of plaintiff constitute a
dischargeof first defendant’s duty to ensure
that reasonable
steps were taken in respect of the maintenance and supervision of the
common property, and in particular the washing
line area, to ensure
that it was in a safe condition for those persons, such as plaintiff,
who would normally and reasonably use
same?
[15] In order to
discharge its legal duty to take care that the common property at the
development was safe, first defendant was
obliged to take no more
than reasonable steps to guard against foreseeable harm to owners and
other users of the common property.
That is in accordance with the
classic test for
culpa
laid down in
Kruger v Coetzee
1966 (2) SA 428
(A).In determining whether reasonable steps were
taken by first defendant, the following
dictum
in
Pretoria
City Council v De Jager
1997 (2) SA 46
(A) at 55I is apposite:
“
Whether
in any particular case the steps actually taken are to be regarded as
reasonable or not depends upon a consideration of
all the facts and
circumstances of the case. It follows that merely because the harm
which was foreseeable did eventuate does not
mean that the steps
taken were necessarily unreasonable. Ultimately the inquiry involves
a value judgment.”
[16] In the context
of the duty to take care that the floors of a shopping mall were
safe, the Supreme Court of Appeal said the
following in
Chartaprops
16 (Pty) Ltd & Another v Silberman
, supra at para 46:
“
Where,
as here, the duty is to take care that the premises are safe I cannot
see how it can be discharged better than by the employment
of a
competent contractor. That was done by Chartaprops in this case, who
had no means of knowing that the work of Advanced Cleaning
(the
contractor)
was
defective. Chartaprops, as a matter of fact, had taken the care which
was incumbent on it to make the premises reasonably safe.”
[17] In
Checkers
Supermarket v Lindsay
2009 (4) SA 459
(SCA), the nature of the
inquiry insofar as the floor of a supermarket is concerned, was
explained thus at para 6:
“
The
issue is therefore whether, on the particular facts of this matter,
the appellant had in place a reasonably adequate and efficient
system, in relation to discovering and removing dangerous spillages
on the supermarket’s floor, to safeguard persons who
frequented
the supermarket from harm. In other words, was harm to the respondent
reasonably predictable?”
[18] In the instant
matter plaintiff was appointed as from 1 October 2008, to attend to
the cleaning of the common property of the
development. It should be
borne in mind that he was not only appointed as the contractor to
perform this service, but was also
one of the two elected trustees of
first defendant. The evidence shows that, as the owner of a
unit,plaintiff had, since taking
occupation of his unit in 2006,
shown a keen interest in the day to day running of the affairs of the
development. His involvement
is reflected in the minutes of the
relevant annual general meetings and, for example,includethe
following:
He liaised with HAP
Flat Maintenance regarding the cleaning of the common property;
He attended to
matters concerning the upkeep of the swimming pool;
He donated and
installed a salt chlorinator for the swimming pool;
He was involved
with the installation of waterproofing in the units and suggested
that aluminium gutters be installed;
He installed a rear
side gate to the premises to prevent easy access to the pool area;
He replaced the
lock to the motor gate;
When the water
consumption was high he carried out an exercise to establish whether
the development had a water leak;
He refitted the
existing surrounding tiles of the pool.
[19] As alluded to
earlier, when plaintiff’s offer to replace the existing
cleaning/gardening contractor, was accepted, plaintiff
presented a
work schedule detailing the work to be done by him. A perusal thereof
shows that this involved practically all the
aspects relating to the
upkeep of the outside areas of the common property of the
development. It should be borne in mind that
this is a relatively
small development and plaintiff, with the assistance of his mother
and his wife, ought not to have experienced
any difficulty in
performing these tasks. In any event, they never complained of an
excessive workload. On the contrary, the impression
I gained is that
they enthusiastically performed these tasks; found same manageable
and prided themselves in the quality of their
work. This included the
cleaning and sweeping of the washing line area twice a week.
[20] In her
evidence, Freeman described plaintiff as the perfect person to do the
job. According to her, he always went far beyond
the call of duty to
make sure that the common property was well-kept. She described him
as being “extremely efficient”
and recalled that when he
was appointed as cleaner/gardener, plaintiff said that he was
dedicated to keep the property in a good
condition and that it should
look good as it is his home. The picture painted of plaintiff, is
that of a capable and meticulous
person who would do everything in
his power to keep the common property clean and safe. Freeman
reiterated that she had full confidence
in his ability and there was
no reason to doubt his ability to properly perform the
cleaning/gardening services at the development.
This evidence was not
disputed. On the contrary, the evidence and demeanour of plaintiff
underscored this assessment of him as
a dedicated, meticulous and
capable person.
[21] Having regard
to this evidence, it appears to me that first defendant, in
discharging its duty to take care that the common
property of the
development was kept safe, could not have opted for a better person.
Plaintiff was not merely an independent contractor,
but a dedicated
owner and trustee who had the proven ability to perform these duties
and in the process ensure that the common
property of the development
would be safe for those owners and occupants who used same. It is
important to bear in mind that, in
doing so, he was assisted by his
mother, and later, by his wife. There is no evidence to suggest that
they did not perform the
tasks properly, nor is there any suggestion
of any complaint being made regarding the performance of their agreed
tasks.
[22] I accordingly
have no hesitation in finding that, by appointing plaintiff to
discharge these duties, first defendant had taken
the necessary
reasonable steps to ensure that the common property of the
development,including the washing line area, was safe
and did not
constitute a hazard to those using same. I am further of the view
that, in so appointing plaintiff, first defendant
could reasonably
rely upon this dedicated person to detect and take steps to remove,
or report, any hazardous conditions which
would render the common
property, or any part thereof, unsafe for use by owners and
occupants.
[23] The case which
plaintiff attempted to make out, is that first defendant actually
knew, or ought to have known,of the slippery
condition of the floor
of the washing line area and failed to take steps to make it safe.
Turning, firstly, to the contention that
first defendant ought to
have known of this hazard, I understood the submission on behalf of
plaintiff to be that, apart from appointing
plaintiff to perform the
functions referred to above, first defendant should have regularly
monitoredthe common property to enable
it to detect any hazards which
could render the common property unsafe.
[24] I do not agree
with this submission. As I have mentioned above, first defendant
appointed plaintiff, a dedicated and efficient
person, to perform the
cleaning/gardening services and the evidence shows that he, with the
assistance of his family members, diligently
performed these tasks,
inter alia
, by regularly cleaning the washing line area with a
hosepipe and broom. To expect that first defendant, should, in
addition thereto,
also regularly monitor the common property, in my
view, goes beyond what is reasonably required of the first defendant.
[25] As far as the
washing line area is concerned, it should be borne in mind that there
has never before been an incident of this
nature in this area and
Freeman testified that nobody ever complained about the condition of
the concrete floor of the area. I
believe that, in the prevailing
circumstances, first defendant was reasonably entitled to rely upon
plaintiff attending to or reporting
any unsafe condition in the
washing line area. Also, first defendant could reasonably have
expected other owners and tenants, who
became aware of any unsafe
condition in the washing line area, to have reported it to first
defendant.
[26] One should also
bear in mind that the common property of the development covers a
relatively small area, which is not frequented
by a large number of
people, as would be the case with a supermarket. There are only eight
units in the development and the washing
line area would normally
only be visited by the occupiers of those units. There would be no
reason for anybody else to enter the
washing line area. In
circumstances where the washing line area is swept and washed down
twice a week by the appointed cleaning
contractor and no reports are
received by first respondent of any existing slippery condition of
the floor of the area, it would
surely be unreasonable to expect
first defendant to take additional steps of a monitoring nature to
discharge its legal duty in
this regard.
[27] Also, in the
context of whether first defendant ought to have been aware of the
slippery condition in the washing line area,
which caused plaintiff
to slip and fall, account has to be taken of the evidence regarding
the detectability of the slippery area.
The plumber, Mr Bedford,
testified that during February 2009, prior to the incident, he
attended to a leak in the roof which he
accessed from the washing
line area. His unchallenged evidence is that, on his visit to the
premises in February 2009, the slippery
area only extended
approximately 300 millimetres into the washing line area, and
certainly not approximately one metre, as depicted
in photographs
1-6. It appears that a reduced slippery area of this extent would
probably not have presented a danger to those
who wished to use the
whirly bird, as the affected area would only have been close-up to
the wall depicted in photographs 1-6.
This is confirmed by Bedford
who said that, had the slimy area extended a metre from the wall, he
would not have been able to put
his ladder up against the wall and he
would have reported this to the managing agent.
[28] Freeman
emphatically denied that she was at any stage aware that the floor of
this area was unsafe due to the accumulation
of slippery slime and
moss. She testified that she owns several properties in the Cape
Peninsula and has been a landlord for many
years. Over the years she
had several tenants in her unit in the development and she would
visit the development 4-5 times a year
to inspect the property. She
testified that she had noticed a small amount of slime under the
water downpipe on one occasion, but
that it was hardly sufficient to
constitute a hazard of any kind. She also testified that no tenants
occupying her unit at any
time complained to her of any slime in the
washing line area or that this area was unsafe.
[29] Having regard
to the whole of the evidence presented on this issue, I find that
plaintiff has failed to establish, on a balance
of probabilities,
that first defendant at any stage ought to have been aware of any
slippery and unsafe condition of the washing
line area.
[30] What remains,
is to consider whether plaintiff has proved, on a balance of
probabilities, that first defendant actually knew
of the slippery
condition of the floor of the washing line area, particularly at the
time when the incident took place. Plaintiff’s
case in this
regard is that he and his wife brought the unsafe condition of the
washing line area to the attention of first defendant,
represented by
Freeman.
[31] As pointed out
by first defendant, it is significant to note that, in his
particulars of claim, plaintiff does not allege that
he had reported
this to first defendant and, in particular, to Freeman. However, in
his trial particulars, plaintiff alleges that
he had reported it to
Freeman. Be that as it may, Freeman strenuously denies that plaintiff
ever made any report to her in this
regard. When one analyses the
evidence of plaintiff, it appears that he only relies on one occasion
during 2009 (no date provided)
when he allegedly verbally informed
Freeman of the problem with the floor of the washing line area.
According to plaintiff, Freeman
said that she would contact the
managing agent, Brown, in this regard. As I have mentioned, Freeman
denies this evidence.
[32] I do find it
strange that, if there was a progressive build-up of slime and moss
during the period 2007 to 2009, as testified
by plaintiff, that, on
his version, he only once mentioned it to Freeman. In view of his
active involvement in the affairs of this
development, it is highly
improbable, to put it mildly, that he would not have frequently
mentioned his concern in this regard
to his co-trustee. Yet, for a
period of two years, he only mentioned it once to Freeman and
apparently never thereafter followed
it up with her. It rather seems
to me that the probabilities favour Freeman’s version that he,
in fact, never mentioned it
to her.
[33] Plaintiff also
testified that he mentioned this problem at an AGM (no date supplied)
when he allegedly stated that someone
would slip and fall and break
his or her neck in the washing line area. Strangely enough, there is
nothing in the minutes of the
AGM’s during the relevant period
which suggests that this had been noted. Once again, I would have
expected plaintiff, who
obviously never hesitated to come forward if
things were not to his liking, to have formally raised the issue at
the AGM and followed
it up subsequent thereto. However, nothing of
the kind happened. Also, Freeman and Brown testified that, if such a
problem had
been mentioned at an AGM by plaintiff, it would most
certainly have been minuted and action would have been taken. In my
view the
probabilities rather favour the conclusion that plaintiff
had not mentioned this aspect at an AGM.
[34] I should add
that the unchallenged evidence of Freeman and Brown was that, after
every AGM, draft minutes would be circulated
amongst all the members
and if there were any corrections due, these could be reported to the
managing agent. This notwithstanding,
plaintiff never recorded any
objection to the minutes to ensure that his alleged concern regarding
the washing line area, was noted.
Once again, the probabilities
dictate that this issue was never raised at an AGM by plaintiff.
[35] Plaintiff also
called his wife as a witness to prove that the unsafe condition of
the washing line area was brought to the
attention of Freeman.
According to Mrs Du Plooy, she had a conversation with Freeman
approximately three weeks to a month before
29 July 2009. On this
occasion Freeman was present at the development as a new tenant was
due to take occupation of her unit and
Mrs Du Plooy invited her in
for coffee. During their conversation, Mrs Du Plooy alleges, she
mentioned the slime build-up in the
washing line area to Freeman. Mrs
Du Plooy says that she remembers the conversation as this was the
occasion when Freeman had problems
with mildew in her unit after the
previous tenant had moved out.
[36] Freeman denied
that Mrs Du Plooy made any reference to a problem in the washing line
area during their conversation. She also
provided a copy of a lease
agreement between herself and her tenant, who only took occupation in
November 2009 and whose lease
expired in October 2010. She testified
that it was after the expiry of this lease that her unit showed
mildew. Apparently this
was due to the fact that her tenant had never
opened his curtains or windows. The tenant was one Freddie Nkosi.
This evidence of
Freeman, supported by the agreement of lease, was
not challenged by plaintiff.
[37] It follows that
the conversation between Mrs Du Plooy and Freeman could only have
taken place in November 2010, some 18 months
after the incident at
the whirly bird. I therefore have to conclude that Mrs Du Plooy’s
evidence in this regard is unreliable
and does not show that she had,
prior to 29 July 2009, brought the issue of the slippery floor of the
washing line area to the
attention of Freeman. I should mention that
Freeman, in any event, testified that the condition of the floor of
the washing line
area had not been raised in the conversation that
she hadwith Mrs Du Plooy.
[38] Having
evaluated the evidence presented on this issue, I find that plaintiff
has also failed to establish, on a balance of
probabilities, that he
or his wife had brought the unsafe condition of the washing line area
to the attention of first defendant,
represented by Freeman. It
therefore follows that there is no basis upon which it can be held
that first defendant actually knew
of the slippery condition of the
floor of the washing line area, particularly at the time when the
incident took place.
[39] This brings me
to the claim against second defendant, the managing agent of the
development. At first blush it would appear
rather unusual to saddle
the managing agent with a positive legal duty to ensure that the
common property of the development is
safe for use by those who
normally use it. It is unusual, as the managing agent is not in
control of the premises and its duties
would normally be of an
administrative nature. See Van der Merwe, Sectional Titles, Share
Blocks and Time-Sharing, Volume I 15-3/4.
[40] It is
significant to note that, at the AGM of 2006, Brown, a member of the
managing agent, described its role as follows:
“…
the
duty of the managing agent is administrative. It is the trustees’
duty to run the day to day affairs of the body corporate
and instruct
the managing agent as needed. Should special projects be carried out,
the managing agent will call for the necessary
quotes and the
trustees/committee will meet on site to appoint the necessary
contractors and oversee the workmanship.”
[41] It is common
cause that second defendant was contractually engaged as managing
agent by first defendant, from approximately
2000 until September
2009, when it resigned as a consequence of the present action
instituted against it by plaintiff. Brown testified
that, although
the appointment of second defendant as managing agent did not take
place in terms of a written agreement, the terms
of the appointment
are encapsulated in second defendant’s standard written
agreement, which deals with the duties of the
managing agent under
the headings of administration, accounting and secretarial. See
Pleadings pages 60-64 (a).
[42] It is
plaintiff’s case that the legal duty contended for, arose by
virtue of the contractual relationship between first
and second
defendant, which,
inter alia
, required second defendant to
receive requests and complaints regarding maintenance and repairs to
be effected at the common property
of the development.This means that
second defendant would, in this manner, be made aware of any
hazardous conditions pertaining
to the common property. Second
defendant would then be required to engage contractors, on first
defendant’s behalf, to perform
the necessary maintenance work
or repairs. Therefore, plaintiff submits, that second defendant owed
plaintiff a legal duty to take
reasonable steps to ensure that all
hazardous conditions pertaining to complaints or reports made to
second defendant, regarding
the common property of the development,
were timeously and effectively attended to. It is this duty which,
plaintiff contends,
second defendant failed to discharge in the
instant case.
[43] I have
difficulty in construing a legal duty of this nature. As mentioned
earlier, second defendant’s duties as managing
agent were
mainly of an administrative nature. In that capacity second defendant
would also call for quotations from contractors,
to effect
maintenance and repairs at the development.However, at no stage did
second defendant undertake to oversee any repairs
or maintenance to
be undertaken on common property, or to ensure that such repairs or
maintenance had, in fact, been undertaken,
or, indeed, undertaken
correctly. Moreover, at no stage did second defendant ever have
control of the common property, nor was
it responsible to supervise
the common property.
[44] The evidence of
Brown was clear, that the role of second defendant was limited to the
obtaining of quotations and the ultimate
appointment of contractors
on behalf of first defendant. Thereafter second defendant would
facilitate payment by first defendant,
to the contractors who had
undertaken the work in respect of the common property. In
circumstances where small payments were due,
same would on occasion
be made by second defendant on behalf of first defendant. However,
Brown stressed that there was no obligation
on second defendant to
oversee the work or to ensure that the work had been attended to
properly. This evidence of Brown was not
really put in issue.
[45] It has to be
borne in mind that there is no statutory duty cast upon second
defendant, as the managing agent, to be responsible
for the common
property or for the safety of those who may use the common property
of the development. The source of such duty,
therefore, has to be
found in the contractual arrangement, and the implementation thereof,
between first and second defendant.
[46] In view of the
aforesaid, it is not surprising that plaintiff, in seeking to hold
second defendant responsible, effectively
had to limit its claim for
the existence of such a legal duty to those occasions where
complaints or reports may have been made
to second defendant
pertaining to unsafe or hazardous conditions at the common property
of the development. According to plaintiff,
second defendant would,
in such circumstances, be required to act positively to ensure that
such hazardous conditions were timeously
and effectively removed.
[47] In my view the
boni mores
of the community do not dictate the imposition of
the legal duty contended for by plaintiff. It would simply cast upon
second defendant
a duty in circumstances where there is no need for
it andbe difficult to discharge, particularly so, as according to
Brown, second
defendant at the relevant time managed approximately 57
sectional title developments.Also, by virtue of the duties performed
by
a managing agent, there is no need to regularly visit these
developments, while the imposition of this legal duty would require
second defendant to physically monitor maintenance and repair work
done at these developments. This would clearly be an impossible
task.
In my view, there is no reason why this legal duty should be imposed
upon second defendant, particularly in circumstances
where first
defendant has the statutory and legal duty to see to it that the
common property is properly maintained and in a state
of good and
serviceable repair. In addition, first defendant appointed a
dedicated and competent person (plaintiff) to take care
of the common
property at an agreed remuneration. Why should second defendant now
also be saddled with a legal duty, merely because
it is required to
make the necessary administrative arrangements for repairs or
maintenance to be effected at the development?
[48] Further, and in
any event, I am not persuaded that plaintiff has proved on a balance
of probabilities that second defendant,
in the person of Brown, was
made aware of any hazardous condition relating to the washing line
area.
[49] What the
evidence shows, is that plaintiff contacted Brown during 2007,
reporting a problem with moisture ingress into his
unit. Brown
contacted a waterproofing expert who attended to the problem.
Thereafter, in February 2009, plaintiff again contacted
her reporting
water seeping into his unit and advised her that, in his view,it was
caused by a waste pipe on the roof of his unit.
Brown contacted the
plumber, Bedford, who attended to the problem. The plumber
subsequently advised her that the problem had been
rectified and
thereafter a waterproofing expert rounded off the work. This was
presumably done to the satisfaction of plaintiff,
who did not
thereafter complain about it.
[50] Brown testified
that, apart from being made aware of these problems relating to
plaintiff’s unit, she was not informed
by him or the plumber or
any trustee or any owner in the development of a hazardous condition
relating to the floor of the washing
line area. In particular, she
was not made aware of any leaking waste pipe or sewerage pipe or the
existence of moss or slime in
the area of the whirly bird. The first
that she heard of the alleged unsafe condition of this area, was when
plaintiff informed
her that he had fallen in the washing line area
and that he intended lodging a claim against second defendant’s
insurers.
Thereafter Brown again sent the plumber to investigate and
to attend to the problem. She reiterated that, prior to this
incident,
she was never requested by anybody to attend to a downpipe
or sewerage pipe which may have caused an unsafe condition to exist
in the area of the washing lines.
[51] The evidence
placed before the court by plaintiff in an attempt to show that Brown
was aware of the unsafe condition of the
washing line area,is most
unimpressive. He personally never informed Brown of the existence of
slime causing a hazardous condition.
He relied on the aforesaid two
occasions when he had reported the leaks at his premises to Brown,
but, as indicated earlier, this
did not result in Brown being made
aware of any hazardous condition. In addition, I find it highly
improbable, if the unsafe condition
of the floor of the washing line
area existed over a period of time, and plaintiff considered it to
constitute a safety risk, that
he would not have advised Brown of
this hazard. This is totally at variance with his character, as
described in the evidence, and
at odds with his conduct in the past,
when he would not hesitate to report any matter which he believed to
impact negatively on
the rights of owners, to the managing agent.
[52] As I have
mentioned earlier, plaintiff also attempted to rely on a comment
which he allegedly made, in passing, at an AGM.He
recalls that he
said that someone would slip and fall and break his or her neck in
the washing line area. However, no recordal
of this statement is to
be found in any of the minutes of the AGM’s. Brown testified
that she had attended all the AGM’s,
and had such a statement
been made by plaintiff, it would have been recorded and attended to.
Having regard to the obvious competence
of Brown as a managing
agent,I have no doubt that, had such a statement been made by
plaintiff, she would immediately have followed
it up.
[53] Finally,
plaintiff relied on the evidence of his wife to the effect that,
during February 2009, she contacted Brown, advising
her of the
leaking downpipe in the washing line area and that this caused slime
which they had difficulty in removing. According
to plaintiff’s
wife, she subsequently visited the offices of Brown to collect keys,
at which occasion she repeated her report
to Brown. In her evidence
Brown emphatically denied this evidence of plaintiff’s wife,
adding that, if Mrs Du Plooy had come
to their offices to collect
keys, she would not have made contact with Brown, but would have
dealt with the receptionist only.
[54] I have earlier,
when dealing with plaintiff’s claim against the first
defendant, expressed my concern about the reliability
of the evidence
of Mrs Du Plooy. It will be recalled that her evidence, regarding the
report allegedly made to Freeman about the
unsafe condition of the
floor of the washing line area, was found to be unreliable. This
obviously impacts adversely on her credibility
as a witness.
[55] It is strange
that, if, as testified by plaintiff, the slippery area had
progressively grown from 2007 to 2009, he would not
regularly have
brought it to the attention of Brown. He had no hesitation in the
past to bring matters that concerned him, to her
attention, but now
he inexplicably remained silent. I have no hesitation in accepting
Brown’s evidence that, if such an unsafe
condition was brought
to her attention, she would immediately have taken action. The
impression that I gained of her is that of
a highly competent person
who prides herself in the quality of work that she delivers.
[56] I also,
therefore, find it rather strange that, if Mrs Du Plooy had informed
Brown of the slippery area on two occasions in
2009, Brown would
merely have ignored it and taken no steps at all to have the problem
attended to. The evidence shows that when
other problems were
reported to her, she would immediately follow it up. It seems rather
improbable that she would have flatly
ignored this potentially
hazardous condition.
[57] Having regard
to the evidence as a whole, I conclude that plaintiff has failed to
prove on a balance of probabilities that
second defendant,
represented by Brown, had the legal duty contended for by plaintiff
and, even if such a legal duty existed, that
second defendant was
made aware of the unsafe condition of the floor of the washing line
area, requiring it to take steps in this
regard.
[58] In view of my
findings above, the action falls to be dismissed. I do, however, wish
to add that it would in any event appear
that, on plaintiff’s
own version, the incident was caused by his sole negligence. It
should be borne in mind that plaintiff
contractually undertook to
keep the common property clean,
inter alia
, by hosing down and
sweeping the washing line area twice a week. Although this may not
have amounted to a delegation of first defendant’s
legal duty
to plaintiff, it meant that plaintiff was contractually obliged to
execute the duty on behalf of first defendant. He
would, in a manner
of speaking, be the ears, eyes and arms of first defendant. On his
own version,he was fully aware of the pre-existing
danger, but had
taken no effective steps to remove same or to have same removed.
Notwithstanding this knowledge, he entered the
courtyard and walked
to the washing lines closest to the wall, where, according to his
knowledge, the slime created a danger. There
was no need for him to
approach that point as he could have remained on the safe side of the
whirly bird and merely turned the
washing lines in his direction. He
could offer no explanation for his conduct, but to say that he had
forgotten about the slime.
[59] As to the issue
of costs, defendants as the successful parties are entitled to their
costs. First defendant has sought a punitive
costs order, but, in my
view, plaintiff has not been shown to have conducted the litigation
in a manner justifying such an order.
[60] In the result
the following order is made:
“
The
plaintiff’s action against first defendant and second defendant
is dismissed with costs, including the costs occasioned
by the
postponement of the trial on 8 October 2012”.
______________
P B Fourie, J
J
udgment
by : Fourie J
Counsel
for Plaintiff : Adv. Wallis Roux
Counsel
for First Defendant : Mr. R Krautkramer
Counsel
for Second Defendant : Mr. M Bey
Attorney for
Plaintiff : Mellows & De Swardt –
Mr.Lucas De Swardt
Attorney for First
Defendant : MiltonsMatsemela Inc.
Attorney for Second
Defendant : Smith Tabata Buchanan Boyes
Date(s) of hearing :
4, 5, 6 and 18 February2013
Date of Judgment :
12March 2013